King v. Shulkin, 29 Vet.App. 174 (Dec. 21, 2017)
HELD: “[T]he availability of higher scheduler ratings plays no role in an extraschedular analysis and [] it is inappropriate for the Board to deny extraschedular referral on this basis.”
SUMMARY: Dudley King is service connected for hearing loss, rated 0%. He appeals for a compensable rating. VA examiners noted “significant effects” on occupation, “poor social interactions,” “hearing difficulty,” “balance problems,” and “dizziness.” One VA examiner summarized the effect of his hearing loss on his life and his work as “difficulty hearing.”
At a Board hearing, he testified that he could not hear the phone ring; he needed to turn up the volume on the television, which made his wife leave the room; he could not hear bird sounds; and he got angry at having to ask people to repeat themselves. The Board remanded for a new examination, and the subsequent VA examiner stated that his hearing loss did not impact his life or work. The Board denied a compensable rating and extraschedular referral because it found that the rating criteria “reasonably describe” his disability and “provide[] for higher ratings for more severe symptoms.”
He appealed to the Court of Appeals for Veterans Claims. The Court framed the issues as (1) whether the rating criteria adequately contemplated the function effects of his hearing loss such that extraschedular referral was not required and (2) whether the availability of a higher schedularrating is relevant to the extraschedular analysis.
The Court began its analysis by explaining the relevant law regarding schedular and extraschedular ratings. The Court emphasized that “[t]he goal of the entire rating process is to appropriately compensate veterans. The schedular and extraschedular analyses are just different means of doing so.”
The Court described the “three-part inquiry” in determining whether referral for extraschedular consideration is warranted. The first element of 38 C.F.R. § 3.321(b) –whether the evidence “presents such an exceptional disability picture” that the schedular ratings are inadequate –requires VA to “compare a veteran’s specific symptoms and their severity with those contemplated by the plain language of the rating schedule.” With respect to this element, the Court noted that “impact on employment is not a symptom.”
If the Board determines that the symptoms or their severity are not contemplated by the rating schedule, the second step requires the Board to determine whether the exceptional disability picture exhibits “other related factors,” such as “marked interference with employment or frequent periods of hospitalization.” In this case, the Board determined that extraschedular referral was not warranted because it found the rating criteria reasonably describe Mr. King’s disability and provide for “higher ratings for more severe symptoms.” It was this second rationale that caught the Court’s attention.
As the Court recently held in Doucette v. Shulkin, 28 Vet.App. 366 (2017), the hearing loss ratings “contemplate the functional effects of decreased hearing and difficulty understanding speech,” but do not “contemplate all functional impairment due to a claimant’s hearing loss.” The Court in Doucette “provided a non-exhaustive list of functional effects” that are outside the rating schedule – such as “pain, dizziness, recurrent loss of balance, or social isolation” – and “acknowledged the existence of effects that would be inherently outside the rating schedule,”
The Court held that ”[t]he availability of higher schedular ratings plays no role in an extraschedular analysis and [ ] it is inappropriate for the Board to deny extraschedular referral on this basis.” The Court explained that the Board’s logic in such a denial “would functionally invalidate § 3.321(b)(1) entirely,” and provided the following example: Assume a disability is rated 30% for symptoms A and B; and 50% for symptoms A, B, X, and Z. What happens to a veteran who’s rated 30% - but has symptoms A, B, and X, but not Z? “Under the Board’s logic, no matter how significantly that veteran’s earning ability were impaired,” VA would be able to deny extraschedular referral just because the rating schedule provided for a higher schedular rating. The Court stated that “[t]his example is precisely the situation § 3.321(b)(1) was created to address.”
The Court further clarified that the holding of King is not limited to hearing loss claims. “Section 3.321 is applicable to all claims.”
FULL DECISION
